Noting Jury Risk, Judge Urges Apple & Samsung to Talk

Judge Lucy Koh used her bully pulpit to once again urge the CEOs of Apple and Samsung to sit down and work out a settlement in their epic patent infringement battle. In making the recommendation to attorneys for both companies, Judge Koh pointed out that both sides face risk if the case gets sent to a jury.

Apple wrapped up its evidence earlier this week, and Samsung began its phase of the trial. As the two sides get closer to seeing the case sent to the nine-member jury, the reality is that nine (theoretically) ordinary folks with no special training in the world of patents will decide who did what to whom and how much it was worth.

Judge Koh told attorneys for the two companies that she, “sees risks here for both sides.” The Wall Street Journalreported that she also said both companies had already accomplished at least some of their goals by making their cases to the public and raising awareness of their various bits of intellectual property.

“In many respects, [it is] mission accomplished and it is time for peace,” she told the attorneys.

The lawyers told the judge that both CEOs would try and talk things out (again), but The Mac Observer would not encourage anyone to hold their breath waiting for those talks to change anything.

Seriously, we simply can’t be responsible for accidental asphyxiation.

As the two sides get closer to seeing the case sent to the nine-member jury, the reality is that nine (theoretically) ordinary folks with no special training in the world of patents will decide who did what to whom and how much it was worth.

As many a discussion thread has shown here, people have passionate opinions on iOS vs. Android. In all seriousness, is it quite possible, should this go to a jury, that jury members will bring their own prejudices to the trial based on the smartphone they use? Is an average iPhone user really going to see Samsung’s case? Is an Android user really going to see Apple’s? Is someone really into Open Source going to see Apple’s for that matter? Or someone who really wished for mobile Flash?

Maybe only Windows Phone users should be allowed on the jury. Of course, that’s assuming there are nine Windows phone users out there.

For the jury to find for Apple, they are going to have to believe (a) that Samsung, as SOP, slavishly copied Apple and (b) that Apple’s patents in question are not ridiculously over-broad and not invalidated by prior art.

For the jury to find for Samsung, they are going to have to believe that Apple was required to secure a license (no Intel exception) and that FRAND takes away negotiating power in a cross-licensing scenario like we should have here. The latter will depend on the jury instruction surrounding FRAND patents, and that is one where there are strong opinions but little applicable case law. Nokia v. Apple comes close, and that didn’t work so well for Apple.

The overarching issue is comparative valuation of standards patents at the bottom of the stack and UI patents at the top. The way the mobile industry has worked in peace time was that having enough strategic patents at any level keeps others from messing with you and encourages cross-licensing on mostly equal terms. But with the smartphone, we have a convergence of phone, computer, camera, GPS, music, etc. and all the players think they are bringing the biggest, shiniest [censored] to the table. I don’t think the jury will frame this as placing a ribbon on the best one.

John Dingler, artist3:17 PM EDT, Aug. 16th, 2012Guest

“Risk?” Come on. Putting your case before a jury is always a risk and both parties know this, so why is Kohl making a special effort to warn about this obviousness?